Recently, guangdong saved industrial and commercial bureau to announce 13 kinds of cars to sell kind of model to be suspected of clause of inequitable contract pattern, organize a contract to superintended an expert to undertake evaluating, with promoting consumer further lawfully dimension authority consciousness, normative car sells industry contract to use. In the meantime, each district of constituent complete province is industrial and commercial with the market superintendency branch begins administrative guidance, supervise and urge relevant operator undertakes rectifying and reform a standard inside time limit, edit inequitable format clause; Sequential to refus is not rectified and reform or already causing a harm inside time limit, give lawfully investigate.
The car sells kind of model to be suspected of clause of inequitable contract pattern violating content to basically be reflected oneself law is absolved to define Wu, liability to pay compensation, responsibility of breach of contract through format clause in car operator, or the responsibility of opposite party of aggravating contract appearance, and eliminate a contract to reconcile to wait for case except the right of the contract relative to square change.
1.Contract name: " new car sells contract detailed rules "
Clausal content
Extraordinary agreement: The active factory when afore-mentioned configuration that follow a car and unit price sign this contract for both sides matchs and the price, because manufacturer produces those who taste the policy such as replacement to adjust, when Party B shifts a car afore-mentioned factories deserve to may produce change, unit price also can change somewhat accordingly, the new plant after Party B agrees to accept change matchs and new price.
Comment on an opinion
This clause belongs to the inequitable format clause that is suspected of eliminating consumer right.
In car sale contract, often consumer pays close attention to configuration and price most, it is a contract whether the main factor that fulfills normally, the contract signs effect of have a youthful look, trade both sides should be fulfilled by contract agreement, if produce change, buyer has authority to change or remove contract, ask the bargainor assumes corresponding liability to pay compensation. And this contract belongs to clause of typical inequitable form, eliminate to buyer is changed lawfully or remove the right of the contract, in the meantime, because oneself reason cannot agree by the contract content consign orders the responsibility of breach of contract of car,with the bargainor strong position is absolved.
2. contract name: Some car " contract of purchase and sale "
Clausal content
The day that the contract signs, second direction Party A hands in deposit XXX yuan, if Party B does not fulfil this contract by the agreement,have no right to ask to return return deposit. Party A does not fulfil this contract by the agreement, should return the deposit that returns Party B to hand in, but do not do any compensation. Deposit supports the fund that it is a car in the future, but deposit amount must not exceed car section amount.
When this clause agrees consumer does not fulfil a contract according to the agreement, operator has authority to confiscate deposit, consumer has no right to return return deposit, and when operator does not fulfil a contract according to the agreement, need to return only return deposit, do not need to undertake any responsibility of breach of contract, the platoon requests to pay the right of penalty due to breach of contract besides consumer, violated the fair principle that ought to follow in civil action.
3. contract name: Some car " contract of purchase and sale "
Clausal content
Because force majeure element, manufacturer produces reason, government sector account, bring about a contract to cannot be fulfilled on time, party A is unaccountable, time postpone.
Comment on an opinion
This clause belongs to the inequitable format clause that is suspected of avoiding operator responsibility.
This clause enlarged operator to absolve the limits of responsibility, also prevent the situation that does not attribute force majeure the condition of responsibility as operator. Manufacturer produces reason place to bring about a contract to cannot be fulfilled on time, should belong to operator to manage a process actually to be able to foreknow reach the management risk responsibility that avoid, be not belong to cannot foreknow, indispensable, insuperable external state of affairs, accordingly, cannot avoid as operator duty case.
4. contract name: Limited company of some car trade " the contract that buy a car "
Clausal content
Party B (buyer) break a contact, if Party B fails to pay by the agreement of the contract, every defer a day, party B pays overdue fine by the contract, press remaining sum 0.2% give Party A.
Comment on an opinion
This clause belongs to the inequitable format clause that is suspected of aggravating consumer responsibility.
According to afore-mentioned clauses, if consumer defer pays, day overdue fine deals with the 0.2% collection of car section remaining sum to press.
The first, comparative and other fine for delaying payment:
Can see, the fine for delaying payment that this car provides all right (0.2% namely extremely) be on the high side.
The 2nd, below the circumstance that did not shift a car, what although regard as the car section that be delayed in delivery consumer,go to the car is indebted, the computation of fine for delaying payment is calculated with interest rate of exceed the time limit, basis " civilian leasehold judicatory explains " the regulation of the 29th regulation is, leasehold both sides has an agreement to interest rate of exceed the time limit, agree from its, but lead 24% in the limit of with exceeding annual interest. This agrees interest rate of exceed the time limit is preferential namely, but accept quota of top interest rate the limitation of 24% . The car in afore-mentioned contracts provides day of fine for delaying payment all right 0.2% , namely rate of annual interest of exceed the time limit is 73% , judicatory explanation sets related outclass.
The place on put together is narrated, the on the high side of fine for delaying payment that this car sets all right, go up objectively set inequitable, unreasonable provision, disobeyed " consumer rights and interests protects a law " the 4th: "Operator and consumer do business, ought to follow the principle of freewill, equal, fair, honest credence. " regulation.
5. contract name: Some trade limited company " car business contract is current clause "
Clausal content
Contract car is checked and accept should undertake in consign place at that time at consign. ... etc have serious examination, affirm, if disagree,should put forward to Party B on the spot. Otherwise, the contract relates a problem before the discovery after car consign ends, party B does not assume responsibility.
The clause is here medium, operator agreement consumer must the spot is checked and accept to car, after car consign, right in front what narrate a problem to all do not assume responsibility. Examine in the spot in, to a few problems that wait for immanent blemish like vehicle performance, quality, consumer examines completely impossibly through naked eye, and operator agrees however after car consign, assume responsibility no longer to the problem of car, accentuated the obligation of consumer, the quality that absolves one's own side assures compulsory, belong to inequitable clause.
6. contract name: " contract of purchase and sale of product of Shanghai some car "
Clausal content
Loan pays: Party B asks with assuring means pays, the financial orgnaization that appoints to Party A applies for a car to consume loan. Party B is in sign [this contract] hind in a few days, pay to Party A head pay reach relevant charge, namely RMB 10 thousand yuan. Party A is in those who receive financial orgnaization to give out " approval loan advice note " hind [this contract] square become effective.
This clause sets, consumer needs with assuring means pays, the amount orgnaization that must appoint to operator applies for a car to consume loan, the platoon chooses to consume the right of loan finance orgnaization independently besides consumer.
7. contract name: " contract of purchase and sale of product of Shanghai some car "
Clausal content
Party B is extracted [contract car] since day, right [contract car] will assume total risk, because of,include undeserved use [contract car] and the damage that cause and ／ or damage.
This clause agrees consumer is since the day that collects car, assume total risk to car, did not eliminate the vehicle that creates because of the blemish of car oneself or flaw to use the risk of generation, also force the mass of vehicle risk that belongs to operator to ought to be assumed go up in consumer body, the format clause in using a contract avoids oneself responsibility, accentuated the responsibility of consumer.
8. contract name: " limited company of service of some car sale buys car agreement "
Clausal content
Party A shifts a car in what receive Party B after the announcement 3 the formalities that shift a car is dealt with to Party B exhibition hall in day, cannot receive car on time because of reason like Party A, both sides should negotiate delay, car mars a risk to be assumed by Party A during delay. If do not talk things over,be become or Party A delay shifts a car more than 7 days, regard Party A as to abandon, party B has authority to handle concerned traffic, do not return deposit.
Comment on an opinion
This clause is belonged to be suspected of aggravating consumer responsibility and the inequitable format provision that remove consumer right.
This clause first in " ... both sides should negotiate delay, car mars a risk to be assumed by Party A during delay " . According to this acceptation, combine the 2nd word of this clause, can be this meaning understanding: If both sides agrees with delay via talking things over, it is during delay car mars a risk by Party A (buyer) assume. Agree with delay to belong to party both sides to pass the conventional modification to original contract, party both sides ought to be carried out according to the contract after revising, namely buyer is during delay inside extraction car attributes the appropriate action that fulfills contract right, do not attribute action of break a contact. During the delay that agrees in both sides inside, before the bargainor has not fulfil consign obligation, have the custodial obligation of the content to mark, conceited risk. This is " contract law " the risk of the 142nd specific provision allocates regulation. Accordingly, this buyer of first risk impute to that will answer to be assumed by the bargainor originally is assumed, belong to the clause of aggravating consumer responsibility, for inequitable format clause.
This clause sets the 2nd medium, brought to bear on to buyer overweight responsibility, gifted the seller's too strong right, also belong to inequitable clause. Because,this is, party A falls in the circumstance that had paid a car total money, going shifting a car before is its right, obligation of and rather than, bargainor cannot because buyer is not seasonable exercise right and acquire additional interest. The bargainor can pass drawing completely or add the means that collects car retention fee to give processing, and cannot mention the buying party not in time the car to regard buyer as to abandon, this is the serious limitation of pair of consumer rights.
9. contract name: " agreement of car buying and selling "
Clausal content
Buyer must not undertake any changing one's costume or dress reach pair of heal to seal off to the car; The time that the service manual place that the service center that must appoint in the manufacturer provides by the manufacturer provides or person number of course of development is done maintain regularly; After on buyer full enough 2 conditions, if car is in,guarantee period inside occurrence breakdown, appraisal of service center of accredit of beard classics manufacturer belongs to quality reason be caused by truly, the bargainor is in charge of car be being maintained freely to manufacturer accredit service center only.
" product of family expenses car is repaired, change, the responsibility that return money sets " thirtieth a few kinds of condition that stipulated operator can avoid 3 packets of responsibility, but in afore-mentioned clauses " the time that the service manual place that the service center that must appoint in the manufacturer provides by the manufacturer provides or person number of course of development is done maintain regularly " be absent avoid duty in formulary case, 3 packets of requirements that proper motion of the person that belong to car selling operation raises, use consumer of accentuation of contract pattern clause the responsibility that laws and regulations of law of other according to should not assume by consumer.
10. contract name: " car of limited company of car sale service sells a contract "
Contract provision
As a result of carry out square reason fails to make a car on time, carry out square but go back deposit; Other reason is same not go back deposit.
Deposit is had protect a gender to Fu Heshuang heavy burden beforehand, of the debt of one party nonperformance of consign deposit, lose deposit; And of the debt of one party nonperformance that receives deposit, answer times doubler return return deposit. Look from this contract provision, this company agreement has carry out square reason not to hand in a car to just remove deposit on time only, and other state all does not grant go back deposit, and return deposit only, do not undertake responsibility of breach of contract, be suspected of using format clause to avoid oneself responsibility.
11. contract name: " new car sells contract "
Clausal content
Buyer affirms, the date making a car that this agreement place carries is only about date, and if because be not reason of buyer reason or blame bargainor,be caused,hand in car date to defer cannot fulfill this agreement content and be brought any losses that incur or damage, the bargainor need not be in charge of.
This provision is specific without the agreement the date that make a car, exempt the responsibility of breach of contract that besides the bargainor likelihood occurrence defer makes a car actually, and the responsibility of breach of contract with not quits set, because tripartite reason causes the responsibility that bargainor of break a contact ought to assume lawfully,absolve, be suspected of using format clause to avoid the responsibility that bargainor break a contact ought to assume lawfully, aggravating buyer is assumed ought to offer what just assume to manage risk responsibility by format clause.
12. contract name: Some enterprise " the car sells agreement "
Clausal content
Party A did not agree by this contract time shifts a car, from the agreement the sun of consign rises every exceed the time limit one day to press subtotal of car money paid for something purchased or received for something sold (of A) extremely pay penalty due to breach of contract to Party B, and still should pay car to Party B wait for charge surely; Party A exceed the time limit exceeds 10 days, party B has authority to sell contract car separately.
Party A serves as buyer, shifting a car is its right, obligation of and rather than. Party A does not have exercise right, just make Party B (bargainor) cannot fulfil obligation, but because this lets Party A,cannot undertake responsibility of breach of contract. Because,this is, have the one party of obligation of breach of contract only, ability agree carries responsibility of breach of contract. Party A shifts a car is the right, its did not carry a car to just do not have exercise right, and rather than violates obligation, should not undertake responsibility of breach of contract so. Make to closing to be no good with obligee the circumstance of the right, " contract law " have corresponding regulation, namely " contract law " the regulation of the 101st concerned drawing. That is to say, do not shift a car when buyer when, the bargainor is OK car drawing, in order to fulfil its contract obligation, but the bargainor has no right to ask the other side pays penalty due to breach of contract. According to " contract law " the 101st regulation, below essential condition, the bargainor is OK the law according to drawing is regular, sell off the car, but must will sell off earning money to undertake drawing.
13.Contract name: " contract of purchase and sale of product of Zhuhai city some car "
Clausal content
Without Party A written license, party B is not gotten will [contract car] carry with rental battalion the purpose is used or resale. Agree for this both sides, if Party B has disobey, any quality consequence that cause from this all are assumed by Party B, include to absolve Party A and / or the quality of manufacturer assures responsibility and other quality responsibility.
Comment on an opinion
This clause is belonged to be suspected of removing consumer right and the inequitable format provision that avoid operator responsibility.
" matter right law " thirtieth sets 9 times: "Droit person is praedial to his movable perhaps, enjoy lawfully have, use, the right of accrual and punish. " . The car buys buyer to own property to what buying car, enjoy lawfully have, use, the right of accrual and punish. The car buys buyer to buy car to place use or resale, belong to the category of lawful exercise droit. Car sale just agrees without its written license, the car buys buyer to be not gotten will [contract car] carry with rental battalion the purpose is used or resale, this clause is suspected of restricting a car to buy the right of square exercise droit.
In addition, the operator in this clause (Party A) agree in pattern contract, like consumer (Party B) use contract car at rental battalion carry purpose is used or resale, operator (Party A) will absolve quality to assure with manufacturer responsibility and other quality responsibility, disobeyed " product quality standard " relevant provision. " product quality standard " the product quality that generator of the 26th regulation ought to produce to its is responsible, the person that thirtieth regulates a sale 4 times ought to take step, maintain the quality that sells a product; The 40th product that provides work off has one of following state, the person that sell ought to be in charge of repairing, change, return money; Cause losing to the customer that buys a product, the person that sell ought to recoup a loss: (one) the performance characteristics that ought to not have a product and did not make a specification beforehand; (2) do not accord with in the product or its wrap mount to make clear used product level; (3) do not accord with the quality state that indicates with the means such as sample of product specification, objective. This clause is suspected of those who prevent operator assuring responsibility.
Civil: Li Dalin of reporter of daily of Guangzhou of Guangzhou referenced · reporter another name for Guangdong Province is industrial and commercial
Graph: Visual China
Guangzhou consults · Guangzhou daily edits Li Lin
